Bradley made up enough charges against Mr. Fox to bring him to a 3020-a hearing. His NYSUT attorney pressured him to resign, so he fired NYSUT and hired Attorney Stuart Lichten, the husband of NYSUT Attorney Maria Elena Gonzales Lichten, to defend him. He was terminated.
The Arbitrator appointed to hear his case was the relatively new addition to the UFT/DOE panel Lana Flame Esq. On or about September 3, 2013 Mr. Fox received his decision from Ms. Flame.
Mr. Fox, pro se, submitted a Verified Petition to the New York State Supreme Court to vacate this award of termination as shocking to the conscience, biased, and unconscionable. Evidently, according to Mr. Fox and in his petition, Arbitrator Flame showed bias toward the Department of Education Attorney Ian Nikol throughout the proceeding and believed all the witnesses except Mr. Fox.
This is why the determination of probable cause is so important. Tenure law, Education Law 3020-a(2)(a) describes this process as follows in sections (1) and (2)(a):
§ 3020-a. Disciplinary procedures and penalties
1. Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section eleven hundred two, and sections twenty-five hundred nine, twenty-five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required to serve. Except as provided in subdivision eight of section twenty-five hundred seventy-three and subdivision seven of section twenty-five hundred ninety-j of this chapter, no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.
2. Disposition of charges. (a). Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying (i) the charges in detail, (ii) the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and (iii) the employee's rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.
But in New York City, says the Department, there is no such event as an Executive Session or a vote, and there doesn't have to be. The DOE ignores the requirements of determining probable cause presented in 3020-a(2)(a). Instead, the DOE argues, Chancellor has given Superintendents and principals the right to decide on charges, find probable cause, testify about their findings, and pursue termination of so-called "incompetent" teachers if they decide that this is the "fact" of the matter. There is a lot wrong with this, the most important being that one person becomes a judge, jury, and executioner. On this denial of due process, the UFT and NYSUT are silent. They do put in writing, however, that if you hire a private legal representative, i.e. attorney and/or paralegal, or do the 3020-a pro se, by yourself, you cannot use Education Law 3020-a as this law has been bargained away. That is simply untrue, I believe, and I can say that as a non-attorney paralegal who works in defense of teachers brought to 3020-a.
This issue will be litigated soon in Court, and as everyone who reads this blog knows, I will be assisting with this lawsuit, and the denial of rights by the UFT, NYSUT and the DOE is my main focus in my book.
In another 3020-a before Lana Flame, the Respondent teacher in that matter was terminated in a decision given to her from New York State Education Department on July 20, 2013. Yet she was told in June that she had been terminated effective May 28, 2013, and then the NYC DOE sent her an invoice to repay them for overpayment of salary from May 28 through July 2013! This teacher, through an error at the DOE, was able to obtain a letter written by DOE Teacher Performance Unit Deputy Director Dennis Da Costa dated May 28, 2013, to HR and the principal who filed the charges against this teacher that Flame had decided on termination, and the decision would be sent to NYS Education Department on July 5, 2013. Meanwhile, he told the principal and HR that this teacher had to be removed from payroll effective May 28.
New York State Supreme Court Judge Alice Schlesinger, on April 23, 2014, granted Mr. Fox's Petition based upon what seemed to be bias on the part of Lana Flame, denied the Corporation Counsel's Motion To Dismiss, and remanded back to a different Hearing Officer for a penalty less than termination. See below.
SUPREME COURT OF THE STATE OF NEW YORK